The Health 202: Trump administration heads to court to defend Medicaid work requirements

THE PROGNOSIS

The Trump administration will appear today before a federal judge to defend one of its most consequential and controversial moves on health insurance — a green light for states to require their Medicaid enrollees to work or volunteer.

And the administration’s prospects for success don’t look great at this point, considering the judge hearing the oral arguments previously called the Department of Health and Human Services “arbitrary and capricious” for approving work requirements at all.

U.S. District Judge Jeb Boasberg, an Obama appointee, will hear two separate but related lawsuits this morning at the federal courthouse in the District. The first is a challenge to Medicaid work requirements in Arkansas, one of just three states that have been allowed to put them into effect so far. The second is a challenge to similar requirements in Kentucky, which Boasberg blocked in June.

Expect the arguments to further inflame a passionate debate among lawmakers and health-care advocates about whether the low-income Americans who benefit from the Medicaid program should be required to show that they’ve obtained a job or engaged in other approved activities such as volunteering or job training.

Whether it’s legal under federal law for states to impose such requirements is the key question at stake here. Opponents of work requirements argue it violates the spirit — and, in some cases, the text — of the Social Security Act, which lays out Medicaid as a “medical assistance program.”

“A frontal assault on the objectives of Medicaid is shocking and brazen,” Eliot Fishman, senior director of health policy for Families USA, told reporters earlier this week.

But HHS Secretary Alex Azar and Medicaid chief Seema Verma claim work requirements are legal because they are aimed at helping people move out of poverty entirely. The agency has approved work requirements for seven states that have requested them, although only Arkansas, New Hampshire and Indiana have implemented them so far.

Arkansas has become a focal point of the whole debate, as more than 18,000 of the state’s 234,000 Medicaid enrollees lost coverage last year either for failing to comply with the requirements or for failing to report their compliance to the state. Under the state’s new rules, beneficiaries lose coverage if they don’t meet the requirements for three months within one year.

Azar said Tuesday that HHS does “not yet have data as to why they fell off the program,” when queried about the Arkansas situation by Rep. Joe Kennedy (D-Mass.). In a heated exchange, Kennedy asked Azar why President Trump’s budget proposal this week backed enacting work requirements nationwide if it had incomplete data about the effects of the policy.

“We believe it’s a fundamental aspect for able-bodied adults, if you are receiving free health care from the taxpayer, that it’s not too much to ask you would engage in some form of community activity,” Azar responded.

“Healthier people working is not the same thing as work making people healthier,” Kennedy retorted.

The evidence in Arkansas of work requirements causing people to fall off Medicaid could make it even harder for HHS to convince Boasberg of the validity of its position this time around. In his ruling over summer, the judge said the agency didn’t adequately assess the impact of work requirements on enrollment overall.

“At minimum, the Secretary failed to ‘adequately analyze’ coverage,” Boasberg wrote. “There are two basic elements to that problem: First, whether the project would cause recipients to lose coverage. Second, whether the project would help promote coverage. The Secretary, however, neglected both.”

And there’s something else that encourages opponents of work requirements. In November, the nonpartisan panel that advises on Medicaid policy sent HHS a letter urging it to pause Arkansas’s work requirements until it had taken steps to help enrollees comply.

“The low level of reporting is a strong warning signal that the current process may not be structured in a way that provides individuals an opportunity to succeed, with high stakes for beneficiaries who fail,” wrote Penny Thompson, chairman of the Medicaid and CHIP Payment and Access Commission.

AHH, OOF and OUCH

AHH: The Food and Drug Administration announced a new policy that aims to make it more difficult for minors to buy flavored e-cigarette products, the latest in an effort to curb youth vaping.

The policy, a key effort by outgoing FDA Commissioner Scott Gottlieb, will limit the sale of fruity and kid-friendly flavors of vaping products to stores that prohibit minors or that have adult-only sections, our Post colleague Laurie McGinley reports. Online sellers of these products will also have to tighten age verification and limit the quantities that are sold. Any companies that violate these rules will be subject to enforcement actions from the agency, which can include stripping their products from the market.

Gottlieb had detailed a plan similar to the new draft guidance back in November.

“Gottlieb also moved up by one year the deadline for flavored e-cigarettes to get agency approval — to August 2021,” Laurie writes. “The sales restrictions and new deadline would apply to a vast array of e-cigarette products, including those offered in flavors such as cherry and bubblegum. They would not apply to mint, menthol and tobacco flavors unless those products were being sold in a way that targeted minors because the agency says those products are most often used by adult smokers trying to quit.”

OOF: The leader of one of the country’s largest insurers expressed openness this week to Medicare-for-all. Humana CEO Bruce Broussard said he views the idea as a potentially enormous opportunity for the health insurance industry, Insider Louisville reports.

“For me, I think it’s a great opportunity for the industry to be able to expand the population that it’s coordinating care with,” Broussard said Tuesday at the Barclays Global Healthcare Conference in Miami Beach, Fla. 

But Broussard said he would expect a Medicare-for-all plan to still involve the private sector working in conjunction with the federal government to provide care, comparing it to the way the U.S. manages its space program. And he warned that there are big, outstanding questions about how such a system would work and who would pay for it.

Partnership for America’s Health Care Future — the coalition of industry groups opposing all iterations of Medicare-for-all — pushed back against Broussard’s remarks.

“Facts show there simply aren’t circumstances under which would a Medicare for All-style proposal represents a ‘great opportunity,'” the group’s Executive Director Lauren Crawford Shaver said in a statement provided to Health 202. “Whether you call it Medicare for All, Medicare buy-in, a public option, or single-payer, it would lead to a one-size-fits-all government-run system. It would disrupt Americans’ coverage including longer waits, lower the quality of care, force families to pay more, and threaten the Medicare program our seniors have been promised and rely on.”

OUCH: Nearly 100 countries reported marked surges in measles cases last year over the previous year, according to a new U.N. report. The rise was in part due to complacency among parents and unwarranted concerns about vaccination, the report found.

Recent measles outbreaks have also led to questions in countries over the ramifications for families unwilling to vaccinate children, even as most countries say that decision is up to the parents, our Post colleague Rick Noack writes.

“A law that took effect at the beginning of 2016 in the Australian state of Victoria made vaccinations a condition for the enrollment of children in preschool,” he reports. “Families unwilling to have their children vaccinated were also refused access to family assistance payments, except if kids were ineligible to receive vaccinations because of allergies. In Europe, Italian lawmakers followed suit in 2017, banning children from nurseries if they had not received a total of 10 mandatory vaccinations and imposing fines on parents of unvaccinated school-age kids. In a sign of how politically divisive the issue remains, the populist Five Star Movement later suspended the rule temporarily. When that suspension order expired this week, hundreds of children were denied access to kindergartens across the country.”

Critics of these sort of measures say it’s more important to debunk conspiracy theories related to vaccines and raise public awareness to their importance. In Finland, for example, there are no mandatory vaccination policies, but efforts such as vaccination in schools and public awareness campaigns have contributed to immunization rates of 95 to 99 percent.

—In December, officials in the county at the center of New York’s worst measles outbreak in decades, were compelled to ban unvaccinated children from going to schools that had vaccination rates lower than 95 percent. Months later, the parents of more than 40 of those children sued the Rockland County health department to get their children back in the classroom. But a federal judge rejected that request this week.

The parents are calling it an “exclusion order” that has “caused and continues to cause irreparable harm,” our Post colleague Reis Thebault reports.

U.S. District Court Judge Vincent Briccetti said it wasn’t in the “public interest” to let them go back to class. “While no one enjoys the fact that these kids are out of school, these orders have worked,” said county attorney, Thomas Humbach, in a statement to the local Journal News. “They have helped prevent the measles outbreak from spreading to this school population.”

The parents’ lawyer Michael Sussman told the New York Times: “What Rockland County has done is remarkably irrational in every conceivable way.”

Rockland county’s effort is the latest effort that exemplifies concern nationwide over the anti-vaccination movement. At the private Green Meadow Waldorf school, where the kids were banned, “the vaccination rate was just 33 percent when the December ban took effect,” Reis writes. “Since then, the county said it has risen to 56 percent, though a school’s spokeswoman told the Times the share was actually 83 percent — either way, short of the mandated threshold.”

HEALTH ON THE HILL

— During Azar’s second day on Capitol Hill this week, Democratic lawmakers spent part of the two-hour hearing grilling him on the administration’s family separation policy.

“We continue to hear reports that family separation is still occurring, despite a judge’s order to stop it,” Rep. Rosa DeLauro (D-Conn.), the chairwoman of the House Appropriations subcommittee said in her opening statement. “We are also learning that it may have started earlier than previously known in July 2017. The administration may have separated thousands more children before Congress and the public learned of this immoral policy.”

She told Azar his agency is “complicit” with “government-sponsored abuse.”

When asked by Rep. Mark Pocan (D-Wis.) about whether there was any funding in the Trump’s latest budget request to address the issue of separated children, Azar explained there isn’t an “ongoing program other than the normal family separations we have because of child welfare done by [The Department of Homeland Security].”

“We don’t have a bigger issue right now in terms of separation; we receive a relatively small number, which are according to standards which are fairly consistent with the long time history of the program,” he said. He did acknowledge issues with “information flows.”

“That’s the biggest issue. I demanded back in June we put a box on the intake form any indication of separation, so there’s an easy way to track that that’s happened,” he said. “We’ve asked for more information from DHS… on any rationale why there was a separation because that can be useful to us. We don’t decide or get to veto a separation but that helps us decide whether there’s a reunification or sponsorship issue.”

Rep. Barbara Lee (D-Calif.) asked the secretary if the administration had looked into the mental health implications of the separations. “If you understood and this administration understood the history of what this does to children and families over the years, you never would have done this,” Lee said, citing the history of generational trauma related to slavery and slave trade. “I’m wondering if any health care professionals… looked into this?”

Azar responded: “Let me be very clear there’s no dispute between us that children being away from their parents is a bad thing, that it poses mental health issues,” he said. “That’s why we have encouraged people, do not come across the border illegally.”

— Two pharmacy benefit managers have agreed to appear before the Senate Finance Committee early next month, following an invitation from Chairman Chuck Grassley (R-Iowa) and the committee’s top Democrat, Ron Wyden (Ore.) to five of the country’s top pharmacy middlemen who negotiate prices and coverage between insurers and drug makers. 

Grassley and Wyden sent letters to Cigna, Prime Therapeutics, OptumRx, Humana, and CVS Health and CVS Caremark, inviting them to testify in an April 3 committee hearing. It will give the PBMs — often targeted for their confusing role in the drug-pricing chain — a chance to defend their own role, after lawmakers grilled pharmacutical executives in a hearing last month. 

— Sen. Martha McSally (R-Ariz.) is asking the Air Force to have a summit on sexual assault in the military. The freshman senator, who revealed last week during a congressional hearing that she had been raped by a superior while serving in the Air Force, sent a letter to Air Force Secretary Heather Wilson calling on her to gather with senior leaders and policy experts for a discussion within the next month, our Post colleague Colby Itkowitz reports.

“I firmly believe that commanders must be fully responsible for preventing and responding to sexual assault in the ranks,” she wrote. “However, if we truly want to see aggressive change, we must take a fresh look at what else needs to be done in our approach to education, prevention, investigation and prosecution of these crimes.”  

She cited statistics from the Department of Defense that found in 2017, 5,277 service members reported being sexually assaulted during their military service. “And these were just the women and men who bravely chose to report their assault,” McSally wrote to Wilson. “This is simply unacceptable.”

AGENCY ALERT

— The National Institutes of Health and a group of scientists and ethicists from seven countries have separately called for a moratorium on gene-editing experiments meant to alter certain heritable traits in babies.

The group of scientists published a commentary in the journal Nature on Wednesday, which our Post colleague Joel Achenbach writes “came in direct response to the actions of a Chinese researcher who, disregarding a global consensus on the ethical boundaries of gene editing, altered embryos that were implanted and carried to term, resulting in the live birth of twin babies.”

“The new call for a moratorium is an acknowledgment that the many warnings emerging from conferences on the ethics of gene editing have not been sufficiently clear and emphatic and, in the case of the Chinese twins, have failed to prevent an ethical violation,” he adds.

Separately, NIH Director Francis Collins issued a statement supporting the call for a moratorium and told The Post this was the position of the federal government and was cleared at the highest levels.

“What we’re talking about here is one of the most fundamental moments of decision about the application of science to something of enormous societal consequence. Are we going to cross the line toward redesigning ourselves?” Collins said.

 The paper in Nature does not call for a permanent ban on gene editing of heritable traits.

— And here are a few more good reads: 

STATE SCAN

LITTLE ROCK, Ark. (AP) — Lawmakers in Arkansas and Utah sent their governors legislation Wednesday banning most abortions 18 weeks into a woman’s pregnancy, moving the states closer to enacting…

Associated Press

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TRUMP TEMPERATURE

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DAYBOOK

Today

  • The Senate Finance Committee holds a hearing on the president’s 2020 budget request.

SUGAR RUSH

From the Fact Checker: Has Trump’s tax cut ‘virtually’ paid for itself?



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